Code of Conduct case—reduction in classification for bullying and harassment and concerns about the quality of decision-making

Disclaimer

The following case summary illustrates how the Merit Protection Commissioner has reviewed a particular case and should not be relied on as legal advice

An Executive Level 2 employee who applied to the Merit Protection Commissioner had been reduced in classification to an Executive Level 1 for behaving at times in a rude, aggressive and dismissive way to subordinate staff.

The Merit Protection Commissioner had a number of concerns about the decision-making in this case. In particular, the person who investigated the allegations appeared to lack skills in conducting an administrative inquiry. That person interviewed witnesses in an unstructured way and appeared unable
to organise the concerns and claims of witnesses into a set of allegations that was capable of being factually proven.

The allegations and findings with respect to the employee's behaviour were an unstructured mixture of:

facts (that on a particular date the employee did or said a particular thing to another person)

assertions (that the employee monopolised discussions in meetings) and

opinion (that the employee was controlling).

In addition, the allegations and proven behaviours included matters relating to the employee's management style, such as the management of deadlines, approach to editing work and skills in delegation. In the view of the Merit Protection Commissioner many of these alleged behaviours were not capable
of being proven to be misconduct and should have been addressed through performance management processes.

Nevertheless, the Merit Protection Commissioner found that there was sufficient evidence to conclude that the employee had breached the Code of Conduct in relation to a small number of incidents of inappropriate behaviour. However, because the investigator appeared to adopt the opinions of the complainants
and made findings that could not be sustained, the investigation and breach findings exaggerated the seriousness of the employee's behaviour.

For this reason, and because the employee had not previously been found to have breached the Code of Conduct, the Merit Protection Commissioner recommended that the sanction decision to reduce the employee's classification level be varied to a lesser sanction. The agency accepted that recommendation.

The Merit Protection Commissioner has observed that investigators and breach decision-makers sometimes struggle to express allegations about an employee's behaviour in a logical and clear way and that this can result in both procedural errors and unfair outcomes.